Judges: Mayham, Putnam
Filed Date: 11/22/1892
Status: Precedential
Modified Date: 11/12/2024
(concurring.) The payment of plaintiff’s claim was not unreasonably resisted, and therefore plaintiff should only recover his disbursements. The same rule should govern the granting of costs on reference under the statute as in an action against executors and administrators. Code Civil Proc. §§ 1835,1836.
HERRICK, J., concurs.
Section 1836 provides that where it appears, in an action brought against an administrator in his representative capacity for money only, that payment of the plaintiffs demand was unreasonably resisted or neglected, the court may award costs against the administrator, to be collected either out of his individual property, or out of the property of the decedent, having reference to the facts which appeared on the trial.
Section 3240 provides that “costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner. ”